Op-Ed: Supreme Court Justices Should Be Elected

Constitutional scholar William Watkins, Jr. argues that Supreme Court justices are policy makers, and not neutral observers of law. Therefore, he says, "the people ought to have a greater voice in the selection of justices." To that end, Watkins proposes elections to fill court vacancies.

NEAL CONAN, host:

And now, the Opinion Page. On Capitol Hill today, confirmation hearings for Supreme Court nominee Elena Kagan got underway. This first day is devoted to opening statements from the senators and the nominee, questions begin tomorrow. And you can expect to hear statements about modesty and restraint due deference to precedent and impartial justice -very much what other nominees said when they were in the confirmation hot seat, but not, writes constitutional scholar William Watkins, how justices act once they have that lifetime appointment.

In an op-ed for The Washington Examiner, he argued that since Supreme Court justices are anything but impartial umpires these days, why not give the American people a role in their selection. Why not, he wrote, elect members of the Supreme Court?

Well, if you think we need to change the current system, if you have questions about how such a process might work, give us a call: 800-989-8255. Email us: talk@npr.org.

You can also join the conversation on our website at npr.org, click on TALK OF THE NATION. You'll also find a link there to today's Opinion Page piece.

Joining us now from the studio in Greenville, South Carolina, is William Watkins Jr., a constitutional scholar with The Independent Institute. And it's nice to have you with us today.

Mr. WILLIAM WATKINS Jr. (Constitutional Scholar, The Independent Institute): It's great to be with you, Neal. How are you?

CONAN: I'm well, thank you. The Constitution says the president shall appoint members of the Supreme Court with the advice and consent of the Senate. What's wrong with that?

Mr. WATKINS Jr.: Well, in a system where Supreme Court justices serve as neutral arbiters and merely decide cases and controversies coming before them, there's not a thing wrong with that. Unfortunately, today the court doesn't do that.

As far back as the 1960s, Justice Hugo Black, one of my favorite justices, stated that the court claims the power to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws with no constitutional authority for that. It's gotten worse since the days of Justice Black. And I simply propose if the court intends to act in that fashion, then give the people a role in choosing members of the court.

CONAN: If they're going to act like legislators, they should be elected like legislators.

Mr. WATKINS Jr.: That's absolutely right. If they're going to exercise some sort of super legislative authority, then the people - and we believe certainly in America that the people are the fountain, the source of all power - well, they should have some role in electing these justices.

CONAN: And you've come up with a procedure?

Mr. WATKINS Jr.: Yes, I've got a modest proposal, as you said, on how we could do this, not having direct elections as, say, candidates run for office for, say, a state governorship, but this: that upon a seat coming open on the court, we would let the president, the House majority leader, and the House minority leader to each submit one candidate to fill the slot. The names of the nominees would appear on the ballot at the next regularly scheduled federal election, which of course is every two years. And the people could then vote on the nominee of their choice.

Now, I believe typically we would have two names submitted insofar as the president and his party in Congress would most likely want to agree rather than split the vote. But it does leave open a chance for, say, the president or members of Congress to submit a third alternative insofar as if we have a cronyism situation, say George Bush and Harriet Miers, the people could have another qualified choice.

CONAN: Okay. And so then they would be up for election, would there be a campaign? Would there be a campaign organization? Would there be rallies? Would there be campaign commercials?

Mr. WATKINS Jr.: Well, the way I see the procedure working - and I recognize that there are valid concerns about judicial nominees raising money to run for office. And I would not oppose on limitations or prohibition on nominee fundraising. Insofar as under this plan, we leave selection of the slate of judicial candidates to the political parties, well, I say let the parties themselves raise the money and use it to educate the people on their candidate's stances and history.

And insofar as my plan also has term limits, a justice could only serve, say, eight or 10 years, they would not run for reelection. We don't have to worry about the justice campaigning and trying to get contributions from, say, BP or some large corporation. It would be over after one term. So that concern is dealt with.

CONAN: But wouldnt you have outside groups saying, Sam Jones wants to be on the Supreme Court of United States and he's mean to his dog.

Mr. WATKINS: And we need that. If Sam Jones, indeed, is mean to his dog or Sam Jones thinks that he ought to be able to write his opinions into law or if he believes there's a living constitution and he is free to deviate from the text, then the people ought to know that. The point is to give the people information, and political parties and election races do impart information.

CONAN: Let's get some callers in on the conversation. 800-989-8255, email us: talk@npr.org. On the Opinion Page today, William Watkins, a constitutional scholar whose op-ed says "A Role for the People in Judicial Selection." We'll begin with Brian(ph), Brian with us from Utica, New York.

BRIAN (Caller): Hi. I just wanted to say I thought it was a pretty good idea. The only problem I have with it is that the Supreme Court seems to be the only functioning body in Washington right now. Could doing this sort of thing change that?

Mr. WATKINS: Well, I don't know that the Supreme Court is the only functioning body in Washington. The court is certainly doing a lot of work without regard to much of what the Constitution says. Just as an example, a couple of years ago, the Supreme Court held that no state or the federal government can impose the death penalty for the rape of a child, and candidly admitted in its opinion that it based that on its own independent judgment, even though the Constitution permits the states and the federal government to impose the death penalty. So, yes, they are functioning but I just believe, unfortunately, outside of the constitutional bounds, which is why we need the people to have some say in choosing justices.

BRIAN: Oh, I can agree with the election. I just - the Supreme Court, at least, is willing to make a decision, being a lifetime body. We have congressman now - Congress is deadlocked.

CONAN: Well, Congress in the past couple of years has passed this big financial reform and health care reform. That seems, to some people, like Congress is doing too much.

BRIAN: Well, I guess I think they're not doing enough.

CONAN: All right. Thanks very much, Brian.

BRIAN: Okay. Thank you. Interesting show.

CONAN: All right. Thank you. When you say activism, would you go back to Marbury v Madison, the decision in which the Supreme Court says if you pass a law and we think it's unconstitutional, guess what, it's unconstitutional?

Mr. WATKINS: No. I think Marbury was a very sound decision and that Justice Marshall was correct. But I don't read Marbury as giving the Supreme Court a role as the ultimate arbiter of the Constitution. In my opinion, Marbury was a much more modest holding, simply that when a case is presented to the court, the court ought to be able to take cognizance of the Constitution as any other branch of government.

We have to remember that prior to our Revolution, courts could not even look at the Constitution and overturn an act of a legislature or even think about it. Under the British constitution, parliament was supreme. It was a major shift when we, the American people, in our Revolution, claimed power to the people. And therefore, the court as the people's agents, just like the governor or a state representative or the president, has the power to interpret the Constitution in that regard.

But of course, Marshall, also in Marbury, when talking about when the court can strike a law, gives examples where the law is concedingly unconstitutional, such as treason requires two witnesses or a confession. Marshall says, well, what would we do if Congress passed a law if only one witness was sufficient? Well, clearly, it's concedingly unconstitutional and the court ought to rule that way. Marshall did not envision the court roaming where you have reasonable policy differences and preferences and writing their own view into law.

CONAN: Here's an email question from Chris(ph) in Wisconsin. In my state, the Supreme Court justices are elected to 10-year terms. Currently, there are serious questions to their impartiality due to campaign contributions. Corporations and special interests are giving large amounts of money to influence certain individuals. These justices are refusing to recuse themselves. I'd prefer appointment.

Mr. WATKINS: Well, Chris is right. But we certainly have a number of states that use elections to form their judiciaries. Right now, I believe there are 33 states that do so, so this isnt a novel option. But again, I believe that my term limit proposal where you're not campaigning for reelection, you serve one term as the Supreme Court justice. You would not be beholden to any donors or interests to try to raise money for the next round. You are independent and may still call it as you see it.

CONAN: But what about that first round when, presumably, you're the nominee of your party, as you suggest this system. So they're raising money for you presumably on the basis that you agree with them.

Mr. WATKINS: You absolutely would put forward your positions and your party would raise money in that regard. However, we still have a reasonable independence preserved because while serving on the court, the justices still serve during good behavior. They could not just be fired, absent some crime of moral turpitude or something else. They just don't serve for life. Now is there some danger of interest groups? Sure, there's always in politics. But again, if the court is going to act like typical politicians, then we must elect them in that manner and there are the risks.

CONAN: Here's an email suggestion from Joel(ph). Rather than voting to put a judge on, how about letting us vote the worst ones off? Vote to fire a few.

Mr. WATKINS: You know, that's actually a good idea as well, Joel. You know, some states have another method for selecting judges known typically as the Missouri Plan, where there are merit selection commissions. And part of that encompasses a retention election. They have an independent commission that chooses candidates to serve as judge. The governor then appoints the candidate and after a few years, there's a retention election.

Now, that sounds like a good idea, but I do have some concerns in so far as the statistics tell us that less than 1 percent are voted out. Without that partisan campaigning that political parties bring, the people, I believe, don't get all the information they need. Therefore, I am comfortable with the political parties having a role under my plan.

CONAN: We're talking with constitutional scholar William Watkins about his modest proposal: pass a constitutional amendment to allow that the next Supreme Court justice be nominated by - the president would get a nomination, so would the majority leader of the House of Representatives and the minority leader. Presumably, one of those two - would be two nominees and they would be voted on by the public at the next federal election, which, of course, are held every two years.

You can see a link to his op-ed in our Web page. Go to npr.org, click on TALK OF THE NATION. And this is TALK OF THE NATION from NPR News.

Let's get Jeff(ph) on. Jeff calling from Bowling Greene in Kentucky.

JEFF (Caller): Hi, thanks for having me on. I'd like to say that I have to disagree with his idea. I agree completely that you ought to be rather strict in interpretation, and I agree that politics is having way too much of a hold on our current justices. But it sounds to me like what he's saying is that it's got a bad situation and that politics is creeping in, and that we need to make it worse by having politics free sway over the justices.

Mr. WATKINS: Well, I don't know if I would go that far. I would say we have to be honest about the situation, that we must say the emperor has no clothes, if you will. And that much of what goes on on the court is not impartial arbiters, as Justice Roberts was fond of saying, calling balls and strikes.

But we have Supreme Court justices tinkering with staring lineups and trying to make decisions when the teams hit and run. And that's not a rule for an umpire. And unfortunately, I believe many Americans think that's a proper role for the justices. They see that if gains cannot be made in a legislative body, well, let's turn to the courts to get our proposals, our ideas, our policies through. And if that is the case, if that is the reality of the system we're faced with, the people should have a role.

CONAN: Well, here's an email to that point from Bob(ph) in Cincinnati. If the public elected Supreme Court justices, would Brown v. Board of Education have been decided the way it was by the court?

Mr. WATKINS: Probably, I would say so. You see, at that time in American history, there is a big push against segregation. When we have Jackie Robinson, we have Major League Sports desegregating. We have the U.S. Armed Services desegregating. We see the public becoming more accepting of that idea that we ought not judge people by their color.

So whether it would have been in 1954, a year or two later, a year or two afterwards, I do think that the public opinion was moving that way and we would've seen the same result, but I think we also have to remember, that really wasn't the court that changed society but again, these other organs, whether it be sports or the Army or Congress with the Civil Rights Act that really started making a change. It wasn't the court.

CONAN: Well, it wasnt for 10 years after that. But anyway, the - you're talking about judicial activism. Wasn't the court, in that case, overriding the rulings of many, many states and localities, saying, no, no, no, you can't have separate but equal. That's not. You can't. You have to have integrated schools.

Mr. WATKINS: Well, first, I think the separate but equal doctrine under Plessy was an incorrect interpretation of the Constitution. And arguably, the justices were freelancing there. If you look at the history of the Fourteenth Amendment, surely at a minimum, they sought to provide equal rights to the former freedmen there. So I wouldn't necessarily go as far as you there.

CONAN: Here's an email from Patricia(ph) in Palm Harbor in Florida. Election of Supreme Court justice is a horrible idea. Would bring way too much politics into the process, much worse than it is now. Most people are not nearly informed enough to pick a justice for a lifetime appointment, though, again, the proposal here, this 10-year appointment. We do have a part in the process, Patricia writes, we elect the president. And that's something that we continually hear from, among others, Lindsey Graham in Supreme Court confirmation processes. Elections have consequences, he says, as he considers Democrats coming up from a Democratic president and Republicans from a Republican president.

Mr. WATKINS: Elections do have consequences. But I think if you look at most people and why they say - voted for Barack Obama or John McCain, the number one issue was certainly not going to be justices. I mean, a president is not guaranteed any picks of Supreme Court justices. Look at Jimmy Carter. He had no chance to appoint a Supreme Court justice at all. And again, politics - she makes a compelling argument against voting in general, an argument that the people ought not be able to vote for senators and representatives. Surely, if we can entrust the people to pick a senator of the United States, to vote for the president or a representative, we can entrust them to vote for a justice.

CONAN: William Watkins, thank you for a provocative modest proposal. We appreciate your time today.

Mr. WATKINS: Great to be with you.

CONAN: William Watkins, a constitutional scholar with the Independent Institute. His op-ed: "A Role for the People in Judicial Selection," was published in The Washington Examiner. Again, there's a link to it on our website. Go to npr.org, click on TALK OF THE NATION. He joined from a studio in Greenville, South Carolina.

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